Clinical Project

Supreme Court RulesContempt of court
TABLE OF CONTENTS
S.No 1. Content Acknowledgement Page No. 3
2. 3. 4. 5. 6 7 8 9 10 11 12
Methodology List of cases preface Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Newspaper Reports Bibliography
4 5 7-10 10-16 17- 48 49-58 59-67 68-75 76-82 83 84-85
ACKNOWLEDGEMENT
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It is indeed my proud privilege to express my deep sense to our of gratitude and indebtness respected teacher
Professor Dr. Nuzhat Parveen Khan, for her inspirational guidance at every stage of my study, and further for her scholarly inspiration my research. and affectionate encouragement throughout the period of
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METHODOLOGY
This assignment for Clinical Course-IV, on the topic Contempt Of Court, has been compiled after a methodical and comprehensive subject . substance news The research Doctrinal books, on method the of
research used for the study includes from journals, daily articles, and reports. I have also used articles from and leading press newspapers, reports
available on various websites.
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LIST OF CASES
AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449. Amrita Bazar Patrika case 45 Cal 160 Attorney-General v Times Newspapers Ltd (1973) 3 All ER 54 Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4SCC 406 Dulal Chandra v. Sukumar AIR 1958 Cal. 474 Home Office v. Harman [1983] 1 AC 280, 310; [1982] 1 All. ER 532, 542 , HL. Isbill v. Stovall, Rex. CIV.App.92 S.W.UD. 1057. King v. Almon 97 E.R 94 King v. Clements106 E.R 918 Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005). Re OSullivan; Ex parte OSullivan v Commonwealth Bank of Australia (1995) 129 ALR 295. Re, Shortridge, 99 Cal 526, 34, p.227 Supreme Court Bar Association V. Union of India, (1998) 4SCC 409; SurendraNath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal I.L.R 10 Cal. 109 United States v. Rylander, 460 U.S. 752 (1983)
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Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men..................Lord Atkin
Judges are priests in the temple of justice as observed by Ranold Dworkin in Laws Empire. Whereas we would say lawyers are worshippers of goddess of justice in the temple. Worshippers through the medium of priests have to reach the goddess of justice. For the same, both are necessary and in absence of one, another is incomplete. Hence, lawyers and judges have to co-ordinate, co-operate and collectively work towards the delivery of justice. Bench and bar need to harmonise and balance their functioning to achieve the sacred goal, i.e justice. However, situation might arise when both could be pitted against each other, i.e a situation of bench versus bar and the conduct of these worshippers (lawyers) then, while pressing their views on the bench may amount to Contempt of court. The topic of Contempt of Court often comes up for discussion and comment. Some talk of reforming the Law of Contempt, others suggest abolishing this power in Courts altogether, etc. The attempt in this project is to give the subject a new look by going into the Fundamental Principles. The basic principle in a democracy is that the people are
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supreme. It follows that all authorities, whether Judges, Legislators, Ministers, Bureaucrats, etc. are servants of the people. Thus, the preamble to the Constitution of India emphasize upon the republican and democratic character of our Constitution, and show that all power ultimately stems from the People. Once this concept of popular sovereignty is kept firmly in mind it becomes obvious that the people of India are the masters and all authorities in India (including the Courts) are their servants. Surely the master has the right to criticize the servant if the servant does not act or behave properly. It would logically seem to follow that in a democracy the people have the right to criticize the Judges.1 Why then, it may be asked, should there be a Contempt of Courts Act which to some extent prevents people from criticizing Judges or doing other things which are regarded as Contempt of Court? This is a question which calls for a close examination, and this is what is attempted here. Contempt of Court, because of its controversial nature, has created contradictory opinions among the jurists as well as scholars. The contempt jurisprudence with the common law origin has been transmitted into the Indian jurisprudence by the Courts of Record through several charters. Our Constitution has acknowledged and accepted this jurisdiction by conferring the status of Court of Record to the Supreme Court and High Courts. A country embedded in the concept of rule of law should give due respect to the law and the organ which applies the law and administers justice. This organ which possesses neither the muscle power nor the money power has to extract due obedience to its orders only through this jurisdiction. But difficulty arises when this jurisdiction clashes with the invaluable rights
1
2007 CriLJ/16 XII Justice Markandey Katju, Judge, Supreme Court of India
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of citizens as well as those of the Press, as enshrined in the Constitution. It becomes all the more difficult when it interferes with the functioning of administrative authorities, corporations and the like. This is where it poses different questions. What constitutes a contempt of court? When and how this jurisdiction has to be exercised? In what way is the judiciary, one of the organs of the state, justified in controlling other organs of the state and also rights of citizens in the name of contempt jurisdiction?
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Parameters of study
The study of the subject is of much practical value in a modern democratic society where freedom of speech and expression is guaranteed by the constitution. It is possible that an abuse of the freedom may affect the impartiality and authority of the court, and hence become detrimental to the dignity of the court. Such abuse has to be checked by the judiciary by the use of its contempt jurisdiction. This seems to be the only way to check the increasing modern tendency to question the power of all duly appointed authorities. This project on Contempt of Court for Clinical course- IV, focuses on the above stated issues concerning the Indian judiciary, along with making an in-depth study of the Law of Contempt in other countries and proposes alterations that may be brought about in the existing law in India.
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CHAPTER- I
Origin and Evolution of the Law of Contempt
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Introduction
Contempt of court is a broad, common law doctrine. It was described by Joseph Moscovitz, as the Proteus2 of the legal world, assuming an almost infinite diversity of forms. 3The law of contempt is essentially concerned with interference with the administration of justice. It was clearly defined by Lord Diplock in a relatively modern case in the following words: Although criminal contempt of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.4
Genesis of the concept of Contempt of Court
The law of contempt of court is of fundamental contemporary importance though it is of ancient origincontemptus curiae has been a recognised phrase in english law since the twelfth century. Contempt power first originated in the United Kingdom and has been largely developed at common law. Superior courts of record have inherent powers of punishing for contempt whether committed inside or outside the court. Inferior courts may be conferred power by statute to punish for contempt committed ex facie.5
2 3
A mythological sea god capable of changing shape at will. J. Moskovitz, Contempt of Injunctions, Civil and Criminal (1943) 43 Col. LR 780. 4 AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449.
5
Justice V.R Krishna Iyer; Contempt of Court; 6th Edn. Eastern Book Company, Lucknow
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When we trace the history of Rule of Law and its place of origin in the name of England, Bill of Magna Carta automatically strikes our mind. Contempt of court (contemptus curiae) is also traced to the annals of judicial history of English Law, from the 12th Century( the period of King John 1215). Development of contempt in the legal sense is related to the principals whereby punishment meted out to restrain disobedience to the king and his court and their administrative state, which could cause hindrance to the course of administration to the justice. In teh Anglo- Saxon laws and through Domesday books, the records of the Curia Regis and the British Parliament the first treaties on the law and year books, references to law of contempt may be traced in its inchoate and rudimentary shape. However the law of punishing Contempt of Courtto restrain disobedience to the king and his courts and other acts which impeded the smooth course of administration of justice was crystallized on sound footing from 14th century onward.
Origin and development of the concept of contempt of court in England

The law of contempt of court is a branch of law which originated and developed in a manner quite different from other laws. Judges created the contempt jurisdiction and claimed it was a natural adjunct to their adjudicating work. A law which began as a convenient method to enforce their orders was subsequently used to extract respect from the challenges of the press. Phillimore committee stated the same in following words;the law relating to contempt of court has developed over the centuries as a means whereby the courts may act to prevent or punish
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conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally.6 In ancient period king as the fountain of justice used to hear the cases for himself. But due to burden of work he was forced to delegate the function to an organ created by him. Sir William Holdsworth recognised the same in the following words.......... The common law courts were royal courts and the judges of these courts were royal justices. The phrase Contempt of Court (contemptus curiae) has been in use in English law for eight centauries and the offence is as old as the law. The law conferred the power to enforce discipline within its precincts and punish those who fail to comply with its orders.7 The idea of contempt of the King is referred to as an offence in the laws set forth in the first half of the twelfth century. Contempt of the kings writ was mentioned in the laws of King Henry-I. In the same laws there was a mention of pecuniary penalty for contempt or disregard of orders. Thus in England before the end of twelfth century contempt of court was a recognized expression and applied to the defaults and wrongful acts of the suitors.8 After making a study of cases in the 13th Century John Charles Fox concluded that there was no indication of trial of contempt out of court in the ordinary course of law and many cases of contempt in court were tried by indictment and not by a summary process.
9
If the
10
contempt is confessed there was no need for trial by jury and such cases of contempt were disposed off by sentence upon confession.
6 7
The earlier form of procedure was attachment by bill, when trial by jury
Supra 2 See Oswald, Contempt of court 1 (1910). This early origin of the contempt law has been acknowledged by Encyclopedia Britannica (Vol.6-p. 414, 3rd Edn.) and also by Joseph H Beale in his article Contempt of Court, Criminal and Civil 21 Harv. L.R 161 (1908) 8 John Charles Fox The nature of Contempt of Court 37 L.Q.R., 191, 194 (1921) 9 Ibid at 198. 10 Ibid at 199.
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was followed, unless the accused confessed. Later the star chamber practice of attachment and examination without jury was substituted for the procedure by bill.
11
From 14th century onwards the jurisdiction of the Kings justice to punish contempt of a criminal nature summarily was limited to the offences not heinous, committed in court in actual view of the justices. The summary jurisdiction was held to extend to all contempts whether committed in or outside the court.12 By 16th century, contempt committed out of court was punished by common law, only after trial in ordinary courts and not by any summary process.
13
Contempt by strangers out of court were tried by
information or by attachment and examination in the common law courts. This practice continued through 18th century and the procedure by attachment and examination were confirmed by the opinion of Chief Justice Wilmot in King v. Almon14 and finally established as law by Justice Holrayed in King v. Clements15. In the year 1888 Libel Act was passed and it permitted fair and accurate reports of judicial proceedings. But contempt proceedings were followed against erring publishers.16 Provisions regarding contemptuous publication have been re-enacted in a modified form in section 3 of contempt of court act, 1981. The County Courts Act of 1959 provided for punishment to any person who willfully insulted the judge of the county court., jurors, witnesses or any officer of the court, including courts other than courts of record. In England as well as in Scotland contempt came to be identified with summary procedure.
11 12
Ibid John Charles Fox The summary process to punish contempt 25 L.Q.R 238, 252 (1909). 13 See John Charles Fox Supra n. 4 14 97 E.R 94 15 106 E.R 918 16 R v. Parke (1900-3) All E.R 721
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Development of the law of contempt of court in India

The law of contempt of court in India is nothing but the offspring of the British Administration of justice in India. Creation of different courts of record in India necessarily meant the introduction of English law of contempt in some measure.17 Establishment of the Court of Mayor and Corporation of Madras under the East India Companys charter of 1687 was the earliest court of record created in India. Admiralty court established under the Royal Charter of 1683 had the right to hear appeals and hence admiralty court was also considered a court of record. Later mayors court was created by the Charter of 172718, which was reconstituted by the Charter of 175319. These courts had power to punish for contempt. In pursuance of the Regulating Act, 1773 the mayors court at Calcutta was succeeded by the Supreme Court established under a charter granted in 1774. The Mayors court at Bombay and Madras was superseded by the Recorders court at Madras. It was abolished by the Government of India Act, 1800 and the Supreme Court was established in its place by the charter of 1801. A Supreme Court was established in the place of Recorders Court at Bombay by a Charter granted under the statute of 1823. The recorders court and the Supreme Court had the same power as the superior courts in England. The superior courts were in turn succeeded by the high courts under the High Courts Act of 1861. The High Court of Calcutta was the court of record in all its jurisdictions and therefore possessed power to commit for contempt. In
17 18
Report of the committee on Contempt of Court, 4 (1963) II Vestiges of Old Madras 1640-1800, 241-242(Charter of 1727, 249) 19 Id. at 439-440 (charter of 1753, 253)
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1886, the High court of Allahabad was established under the High courts Act , 1861 and was constituted a court of record. The leading authority on the subject is the Privy Council and its decision in SurendraNath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal20 it was held by Justice Peacock that the High Courts in the presidencies are superior courts of record and the offence of contempt and the powers of High Court for punishing it, are the same there as in the country , not by virtue of the Penal Code for British India, and the Code of Criminal Procedure 1882, but by virtue of the common law of England. Further article 129 and 215 of our Constitution made the Supreme Court and High Courts as courts of records. Though the High Court as a court of record had the power to punish contempt of itself, doubt arose as to the power of the court of record to punish contempt of subordinate courts. Also there was no general law providing for punishment of contempt of these courts. The Indian Penal Code 1862 made certain acts constituting specific offences punishable as contempt. For making the concept of court more specific and for providing punishment for contempt of subordinate courts , the contempt of courts act, 1926 act was passed. Section 2 of the Act empowered the High Courts of judicature to exercise the jurisdiction, power and authority to punish contempt of subordinate courts. The act was amended in 1937 to make it clear that the limits of punishment provided in the act related not only to contempt of subordinate courts but also to all cases. The contempt of court act 1952 touched only the fringes of the subject. While its existing provisions should be continued there is need for widening considerably the scope of the act. The unsatisfactory nature of this act necessitated the government to constitute a committee in 1961 with H.N Sanyal as chairman to study
20
I.L.R 10 Cal. 109
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the matter and make recommendations for the proper functioning of the law of contempt, because the government felt that the law relating to contempt of court was uncertain, undefined and unsatisfactory. On the basis of the recommendations made by the committee, contempt of courts act 1971 was passed which can be described as a comprehensive legislation. The English and the Indian authorities are based on the basic foundation of inherent power of court of record having jurisdiction to correct the judicial orders of subordinate courtsinherent powers of a superior court have remained unaffected even after codification of the contempt law.
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CHAPTER-II What constitutes contempt of Court?

Definition and Meaning
What is a court?
It is21 an agency of the Sovereign created by it directly or indirectly under the authority, consisting of one or more officers, established and maintained for the purposes of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof and of applying the sanctions of the law authorized to exercise its powers in due course of law at times and places previously determined by lawful authority.22 A court is also described23 as an organized body with defined powers, meeting at certain times and places for the hearing and decision of the causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz. Attorney and Counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings.
What is contempt of court?

Blacks Law Dictionary, 4th edn. 425 Isbill v. Stovall, Rex. CIV.App.92 S.W.UD. 1057. 23 Ex parte Gardner, 22 Nev 280,39P.570 (p.404, para 68)
21 22
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No satisfactory definition of contempt can be had24, because the offence is manifesting itself in a variety of ways. But the classical and celebrated explanation as given by Lord Hardwicke L.C in St. James Evening Post case25 has obtained general acceptance. Contempt is generally defined as an act of disobedience to an order of a court, or an act of disrespect of a court.26 Therefore anything that curtails or impairs the freedom of limits of the judicial proceedings must of necessity result in hampering of the administration of Law and in interfering with the due course of justice. This necessarily constitutes contempt of court. Oswald defines contempt to be constituted by any conduct that tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudice parties or their witnesses during litigation. Halsbury defines contempt as consisting of words spoken or written which obstruct or tend to obstruct the administration of justice. Black Odgers enunciates that it is contempt of court to publish words which tend to bring the administration of Justice into contempt, to prejudice the fair trial of any cause or matter which is the subject of Civil or Criminal proceeding or in anyway to obstruct the cause of Justice. According to Blacks Law Dictionary27 Contempt is generally defined as an act of disobedience to an order of a court, or an act of disrespect of a court.
24 25
Report of the committee on contempt of court, 48 (1974) (1742) 2 Atk. 469 26 See e.g. Black's Law Dictionary, 4th Ed. p. 390 (West's 1968)
27
4th Ed. p. 390 (West's 1968)
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In the Contempt of Courts Act, 70 of 1971 the provision in section 2 defines; Civil contempt means wilful disobedience to any judgment,
decree, direction, order, writ, or other process of a court or wilful breach of an undertaking given to a court; criminal contempt means the publication(whether by words, spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any other act, whatsoever which(i) (ii) (iii) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. The aforesaid definition may be subject to criticism as a legislative encroachment on the judicial power to demarcate what exactly is contempt of the court in a given set or circumstances. It is however apposite to refer the oft-quoted Lord Hardwicks three fold classification of contempt28 which is: Scandalizing the Court itself. Abusing parties who are concerned in the causes, in the presence of court. Prejudicing the public against persons before the cause is heard.
28
St. James Evening Post Case, (1742) 2 Atk 469.
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Colorado law defines contempt as one of the following actions that have the general effect of disobedience or disrespect for a court or an order of the court:29 Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; Behavior that obstructs the administration of justice; Disobedience or resistance by any person to, or interference with, any lawful writ, process, or order of the court; or Any other act or omission designated as contempt by statute. In American Jurisprudence30 it has been pointed out that generally speaking. He whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation31 or otherwise tends to impede, embarrass or obstruct the court in the discharge of its duties, is guilty of contempt.32
Object and policy of the Law of Contempt
The root principal behind Contempt of Court is that the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman and it is so because the court is not
29 30
C.R.C.P. 107(a)(1) 2nd Edn., Vol 17 p.6, S.3 31 Ex parte Earman, 85 Fla 297 31 32 Re, Shortridge, 99 Cal 526, 34, p.227
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adjudicating upon any claim between the litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. Power to punish for contempt is for maintenance of an effective legal system. Contempt jurisdiction cannot, however be invoked to wreak personal vengeance against the alleged contemnors. The quintessence of contempt jurisprudence is obstruction of or interference with the administration of justice. The key to the courts authority is peoples confidence in that great institution and what shakes his faith is a blow to democracy. So, independent of royal beginnings, no democracy can be functional if justice is jejune and lacks the power to punish whoever challenges or chokes its authority. On fundamentals, contempt jurisdiction is basic to the rule of law. And be you ever so high the law is above you. The court being the principal instrumentality of law and justice, contempt power, wisely understood and rightly used, has a democratic basis. This hermeneutic perspective makes contempt power a peoples tower tall enough to command obedience when justice is at stake and authoritarian contumacy attacks judicial supremacy. Courts are courageous, not cowardly, are not hypersensitive but do not retreat from audacious effrontery. Courts are unduly sensitive to fair comment or even outspoken comments being made about their judgments and orders made objectively, and fairly and without any malice, but no one can be permitted to distort orders of the courts and deliberately give a start to its proceedings, which have the tendency to scandalize the court or bring it to ridicule, in the larger interest of protecting challenges the the administration authority of of the justice. court, When he the contemner with the interferes
performance of duties of judges office or judicial process or administration of justice or leads to generation of tendency of bringing
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the judiciary into contempt. In the general interest of the community it is imperative that the authority of the courts should not be imperiled and there should be no unjustifiable interference in the administration of justice. While the existing law of contempt has the sanction of the constitution, should it satisfy the test of reasonableness so that it may be justly classified as a reasonable restraint rather than an arbitrary The empowerment. The American test of clear and present danger is far more liberal than the Indian conception on contempt of law. freedom of the press is a value too dear to be sacrificed even as freedom of speech of the individual cannot be left to the mercy of judicial maverick.
Classification of the Law of Contempt

Contempt may be direct or indirect. Contempt is direct when the act (or omission) occurs in the presence of the judge or so near to the judge that it may be perceived by his or her senses (e.g., obscenities shouted in the hallway outside the courtroom loudly enough to be heard by the judge). Indirect contempt is contempt which is not direct (e.g., an ex-wife who refuses to pay court-ordered child support; a lawyer who does not show up for a scheduled docket call).
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The distinction matters because direct contempt may be punished "summarily," i.e. with some but quite minimal due process.33 By contrast "[where the misbehavior is not in the immediate presence of the court so that it may act on its own knowledge of the facts, summary punishment is not authorized."34 In a summary contempt proceeding, "objectively observable and describable behavior that causes an articulable interference with the administration of justice must be demonstrably present."35 The conduct must have occurred in open court and "threaten a court's immediate ability to conduct its proceedings."36 In common law jurisdictions, contempt of court has traditionally been classified as either in facie curiae (in front of the court) or ex facie curiae (outside the court), or as criminal or civil. The latter distinction can be confusing because it has nothing to do with whether the proceedings are criminal or civil. Criminal contempt occurs when there is interference with or disruption of criminal or civil court proceedings. Examples include yelling in the court room, publishing matters which may prejudice the right to a fair trial (trial by media), or criticisms of courts or judges which may undermine public confidence in the judicial system (scandalizing the court). Civil contempt occurs when a person disobeys a court order and is subject to sanctions, such as a fine or imprisonment. The purpose of
33
See: In re Terry, 128 U. S. 289 (9 SC 77, 32 LE 405) (1888); Offutt v. United States, 348 U. S. 11 (75 SC 11, 99 LE 11) (1954). 34 MeDaniel v. State, 202 Ga. 409 (414 SE2d 536) (1992), quoting Moody v. State, 13 1 Ga. App. 355, 359 (2) (206 SE2d 79) (1974). 35 In re Shafer, 216 Ga. App. 725,726 (455 SE2d 421) (1995). 36 International Union v. Bagwell, supra; Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005).
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civil contempt is not only to enforce court orders, but also to maintain public confidence in the judicial system since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity.37 Civil contempt can be defined as, wrong to the person who is entitled to the benefit of a court order. It is a wrong for which the law awards reparation to the injured party; though nominally it is a contempt of court it is fact a wrong of a private nature. Civil Contempt is a sanction to enforce compliance with an order. It means willful disobedience to any judgment, decree, writ or other process of court. As Lord Scarman has pointed out, the distinction between the two may have less relevance today, but it still useful for classification purposes: The distinction between civil and criminal contempt is no longer of much importance, but it does draw attention to the difference between on the one hand contempts such as scandalizing the court, physically interfering with the course of justice, or publishing matters likely to prejudice a fair trial, and on those other contempts which arise from non-compliance with an order made, or undertaking required in legal proceedings. As was observed in Home Office v. Harman38 the distinction between civil and criminal contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempt such as scandalizing the court, physically interfering with the course of justice, or publishing matter likely to prejudice a fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required, in legal proceedings. The former are usually the business of the attorney general to prosecute by
37
Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) [1983] 1 AC 280, 310; [1982] 1 All. ER 532, 542 , HL.
38
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committal proceedings (or otherwise); the latter constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act; he may waive, or consent to, the non-compliance. A further distinction to be made in the area of contempt law is whether the contempt charged is civil or criminal in nature. The difference between civil and criminal contempt is the remedy sought. If the purpose of the contempt order is remedial, such as to compel the contemnor to obey a court order, the contempt is civil. If the purpose of the contempt order is to punish past wrongful conduct, and thereby preserve the dignity and integrity of the court, the contempt is criminal. Particularly when the sanction to be imposed is imprisonment, the court will require a present ability to perform as of the time of the contempt hearing. For example, in Bowen,39 the Florida Supreme Court stated, "[b]ecause incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply." In civil matters, disobedience or resistance to a court order is the most common application of the rule. This is often referred to as indirect or constructive contempt because the act of disobedience is done out of the direct site or hearing of the court. Direct contempt occurs in the presence of the court at trial or during various court proceedings. In Dulal Chandra v. Sukumar40 it was held that the line between civil and criminal contempt can be broad as well as thin. Where the contempt consists in mere failure to comply with or carry out an order of a court made for the benefit of a private party then it is plainly civil contempt and it has been said that when the party in whose interest the order was made moves to the court, for action to be taken in
39 40
Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) AIR 1958 Cal. 474
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contempt against the contemnor with a view to an enforcement of his right ,the proceedings are in the form of an execution. In such a case there is no criminality in the disobedience, and the contempt as it is not criminal. If however contemner adds defiance of amounts to obstruction opponent as civil and criminal contempt. CRIMINAL CONTEMPT- BY THE INDIVIDUAL AND THE PRESSTHE COMMON GROUNDS Criminal contempt as also stated above has been classified into two categories; they are direct criminal contempt or contempt in the face of the court and indirect criminal contempt or contempt through words spoken, written or through publication made outside the court. Direct criminal contempt is treated as specific offence and it is dealt with in the Indian penal code.
41
the court
to
disobedience of the order and conducts himself in a manner, which with the course of justice, the contempt between him and the court of the state as committed is of a mixed nature, partaking as between him and the
Corresponding procedure is contained in the

42
Criminal Procedure Code.
Constitutional guarantee of freedom of speech and expression does not permit either the individual or the press to commit contempt of court. The purpose of the contempt jurisdiction is to safeguard the administration of justice from undue interference and verbal attacks from any agency. The judiciary though competent to use the contempt power used it only sparingly.43 It cannot as a rule be too sensitive. Free and fair criticism of the judicial act motivated by bona fide reasons has to be permitted, but scurrilous attack on the judiciary motivated by mala fides has to be viewed seriously and should be restricted. Before
41 42
Section 228 Sections 480-487 43 N.G.Shelat, Contempt of Court, XII Gujarat Law Reporter (Jnl.) XIII (1972)
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the passing of the Contempt of Courts Act, 1971, the law of contempt of court in India especially as it related to the press was based on the common law principles as adopted by the Indian courts from time to time. Two enactments which preceded the 1971 Act, one in the year 1926 and another in the year 1952 have not made any mention about constructive contempt. Contempt of Courts Act, 1926 empowered the High Courts constituted under the Letters Patent to exercise Contempt jurisdiction in case of contempt of sub-ordinate courts so also that of chief Court.44 It also restricted the punishment to be given to the contemner.45 Contempt of Courts Act , 1952 also dealt with the power of the high court to punish contempt of sub-ordinate courts and also restricted the punishment to be awarded.
46
Further the High Court was
made to include Judicial Commissioners court also.
Situations resulting in Court

Improper pressure on parties
Contempt of
It is a contempt of court to put improper pressure on a party to court proceedings. In Attorney-General v Times Newspapers Ltd (1973) 3 All ER 54, the House of Lords was considering a newspaper article relating to legal proceedings then on foot against manufacturers of the drug
44 45
Ibid. Section 3 of the 1926 Act. 46 Section 4 of the 1952 Act.
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thalidomide. The article attacked the manufacturer for making a small settlement offer. That article included the following statements: the thalidomide children shame Distillers; The settlement offer does not shine as a beacon against pretax profits last year ... and company assets; Distillers could and should think again. The House of Lords:
held that it was a contempt of court to use improper pressure to induce a litigant to settle a case; was divided as to whether the criticism in the article amounted to improper pressure or was fair and temperate.
Prejudging result of proceedings

In the abovementioned case the House of Lords also considered a proposed article containing detailed evidence and argument to show that the thalidomide manufacturers had not exercised due care. The House of Lords held that the proposed article would be contempt because the fair trial of the proceedings would be prejudiced. In Australia a broadcast occurred shortly before the commencement of criminal proceedings. The broadcast:
was concerned with the Age tapes, not with the criminal proceedings; made statements which the NSW Court of Appeal held to imply that the accused person was guilty; was held by that Court to be a contempt of court.
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Also in Australia, a prominent public officer was asked by a journalist for his view of a court order overturning a conviction of a person and granting a fresh trial. The officer expressed his belief that the accused person was innocent and that a different result would be achieved at the fresh trial. That statement was held to be a contempt of court.
An Inquiry into Matters Covered by Court Proceedings

Situations can arise where the subject matter of a particular court case is also a matter, or related to a matter, of public interest into which a Government might wish to conduct an inquiry. In that event, the question arises whether the conduct of the inquiry would amount to a contempt of court. The position has been summarised as follows: The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. (Ex parte Bread Manufacturers Ltd
47
The High Court of Australia has stated that the conduct of a Royal Commission would constitute a contempt of court if it actually interfered with the administration of justice or had a real and definite tendency to do so: Victoria v BLF
48
Factors which a court will take into account in deciding whether the conduct of an inquiry constitutes contempt of related court proceedings include:
47 48
(1937) 37 SR (NSW) 242 at pages 249250 (1982) 152 CLR 25.
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Whether the court proceedings are civil or criminal As is to be expected, a court will be especially vigilant to protect the integrity of criminal proceedings.
Whether the facts in the court proceedings will be determined by a judge or by a jury A court will be concerned at the prospect of a jury being influenced by a related inquiry but will generally regard a judge as not being capable of being so influenced.
The extent to which the inquiry is examining matters covered by the court proceedings If the inquiry avoids considering, or receiving evidence relating to, the guilt or innocence of the party in the court proceedings, the inquiry is far less likely to be held to be in contempt of court.
Whether the inquiry is being held in public or in private Obviously, if an inquiry being held in private, the potential for a jury to be influenced by its proceedings is remote.
Does the inquiry have compulsory evidence gathering powers An inquiry which was exercising a power to compel a person to disclose information or documents relevant to that persons case in court proceedings might be held to be in contempt of court, especially where the information or documents were prejudicial to that persons case in the court proceedings.
The extent to which the particular proposed conduct by the inquiry is authorised by statute The more detailed the statute establishing the inquiry, the less likely it is that the inquirys conduct pursuant to that statute would be a contempt of court.
Disclosure of documents to the court

It is vital to ensure either that a court order requiring disclosure of documents is fully complied with, or that any deficiency in compliance
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is brought to the courts attention. In a case in Australia, the facts as found by the court were as follows. A government officer received a court subpoena on a Friday morning. The subpoena required production of documents the following Monday morning. The officer conducted a search for documents within Australia. That search revealed no documents answering the subpoena. The officer arranged for the court to be informed that there were no documents answering the subpoena. In subsequent proceedings it became apparent that the relevant department had held documents at an overseas post. The Court held the officer guilty of contempt and ordered the officer to pay costs of several thousands of dollars. The court clearly intimated that, if it had found the contempt to have been deliberate, a more severe penalty would have been imposed. If time did not permit a full and thorough search, the court should have been so informed and requested to grant further time.
Use of documents obtained by a courts compulsory process

Subject to certain qualifications, a party to court proceedings who receives information pursuant to the courts compulsory process is subject to an implied undertaking, given to the court, not to use or disclose the information except for the purpose of those proceedings. The undertaking applies to all forms of a courts compulsory process, eg. subpoena, discovery, interrogatories, orders requiring production of affidavits or witness statements. A breach of the undertaking (eg. by disclosure of the information to the media or for the purpose of another court case) is a contempt of court. The qualifications are:
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the court may grant leave for the proposed use or disclosure, or the person from whom the information was obtained may consent to the use or disclosure;
the undertaking ceases upon the information being admitted into evidence in open court.
Eg. Eltran Pty Ltd v Westpac Banking Corporation (1990) 98 ALR 141; Sentry Corporation v Peat Marwick Mitchell & Co (1990) 24 FCR 463. It has been held that the implied undertaking exists in relation to information obtained by compulsory process in the Administrative Appeals Tribunal: Otter Gold Mines Ltd v McDonald(1997) 147 ALR 322.
Statements about a judge

A statement that a judges conduct in court, or the judges decision, has been influenced by some factor other than the evidence in court and the judges view of the law, can be a contempt of court. For example, a statement by a union official that union action had been the main reason for a particular court decision was held to be incorrect and a contempt of court Gallagher v Durack (1983) 45 ALR 53. This is because such a statement undermines the administration of justice by lowering the authority of the court in the minds of the general public. Conversely, a statement that a judges decision showed that the judge was a racist judge was held not be a contempt of court: AttorneyGeneral for NSW v Mundey
49
. In the circumstances of that case, the
statement was accepted as being a statement about racism generally
49
(1972) 2 NSWLR 887
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in Australian society and thus not being an attack upon the judge or court as such, but an attack upon society, and its laws (at page 913). Also, it is no contempt of court to criticise court decisions when the criticism is fair and not distorted by malice and the basis of the criticism is accurately stated. To the contrary, a public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit: Nationwide News Pty Ltd v Wills
50
Abuse of a judge in the court proceedings themselves will
generally be a contempt of court. Otherwise, attacks on a judges personal reputation will be left for determination under the law of defamation, unless the attacks also undermine the administration of justice.
Improper pressure on a witness or juror

Punishing an employee for being a witness or juror, or pressuring a witness about what evidence to give, can be a contempt of court.
Destruction of documents
It can be a contempt of court to destroy documents likely to be required for court proceedings, even if:

no subpoena has yet been issued for their production; the documents were not essential for the proceedings.
Inhibiting access to courts
50
(1992) 177 CLR 1 at 389.
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It is a contempt of court to engage in conduct having a real tendency to put pressure on litigants, witnesses and other persons who must be left to come and go in connection with court business free from threat or harassment: Registrar v Unnamed Respondent (unreported) Miles CJ ACT Supreme Court 16/3/94. Arresting, or taking photographs of, a litigant in court precincts has been held to be a contempt. However, there is no general law that all service of process within the precincts of a court constitutes a contempt of that court: Re OSullivan; Ex parte OSullivan v Commonwealth Bank of Australia (1995) 129 ALR 295. Service of a bankruptcy notice in court precincts has been held not to be a contempt of court. Service of a witness summons would probably generally also not be a contempt of court. Each case needs to be considered on its own facts.
Breaching a court order

A person can commit a contempt of court by breaching an order directed to that person. Also, it has been held that a newspaper which published material, knowing that another newspaper was injuncted from publishing that material, was guilty of contempt of court. The consequence of the publication was to nullify the injunction against the other newspaper: Attorney-General v Times Newspapers Ltd
51
Procedure for Contempt dealings

The criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law
51
(1991) 2 WLR 995.
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even in this country has always been summary. However, the fact that the process is summary does not mean that the procedural requirement, viz., that an opportunity of meeting the charge, is denied to the contemner. The degree of precision with which is made clear or otherwise not always The the charge may be stated depends upon the circumstances. So long as the gist of the specific allegations the contemner is aware of the specific allegation, it is consensus of opinion among the judiciary and is that despite contempt himself and the defend dealing
necessary to formulate the charge in a specific allegation.
the jurists alike to
the objection that the Judge deals with the contemner has little opportunity
himself, there is a residue of cases where not only it is with certain offenders. This procedure does not offend in sua the Judge
ustifiable to punish on the spot but it is the only realistic way of against the principle of natural justice, viz., Nemo judex causa since the prosecution is not aimed at protecting personally but threat of protecting the administration
of justice. The
immediate punishment is the most effective deterrent The Judge has to remain in full control of the
against misconduct. order
hearing of the case and he must be able to take steps to restore as early and quickly as possible, The time factor is crucial. out the contempt proceedings means a lengthy Dragging
interruption to the main proceedings which paralyses the court for a time and indirectly justice is impede the speed and efficiency with which administered. Instant justice can never be completely in
satisfactory yet it does provide the simplest, most effective and least unsatisfactory method of dealing with disruptive conduct Court. So long as the contemner's interests are safeguarded by giving him an opportunity of being heard adequately in his
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defence, even summary procedure in the case of contempt in the face of the Court is commended and not faulted. Infact in the opinion of Oswald, a court of justice should have such power to punish brevi manu to vindicate its own dignity. A summary and quick mode of meeting out punishment to the contemnor if he is guilty is very efficacious in inspiring confidence in the public as to the institution of justice. Without such protection courts would go down in public respect and the maintenance of law and order will be in jeopardy. In the Amrita Bazar Patrika case
52
, Mukherjee, J.., discussing
the need for the brevi manu procedure said: the principle deducible from these cases is that the punishment is inflicted for attacks of this character upon judges not with a view to protect the court from a repetition of the attack, but with a view to protect the public from the mischief they will incur if the authority of the tribunal be undermined and impaired. In the 1971 Act the provision in Section 14 retains the summary procedure in cases of ex-facie contempt. In the matter of what is termed constructive contempt i.e contempt as to acts or writings outside the court which is brought later to the notice of the court teh procedure is entirely different (vide sections 17 and 18 of the 1971 Act). It must be remembered that only courts of record can claim such summary powers. These summary powers of the Supreme Court and the High courts as courts of record are in no way effected by or limited by the procedure set out in sections 14, 15, 17 an d18 of the 1971 Act. These court of record do, even after the passing of the 1971 Act, have their inherent and long established powers to deal summarily in matters of contempt.
52 53
53
45 Cal 160 Supreme Court Bar Association V. Union of India, (1998) 4SCC 409; Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4SCC 406
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Also apart from the Contempt of Court Act, 1971, we have Rules to regulate proceedings for contempt of the Supreme Court, 1975. The rules have been made in furtherance of the Supreme Court Rules, 1966 and for exercise of the powers under section 23 of the Contempt of Courts Act, 1971, read with article 145 of the Constitution of India and all other powers enabling it in this behalf. The above stated rules also contain Performa for sending notice of contempt and warrant of commitment of contempt etc. the rules are as herein stated under:-
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Supreme Court RulesContempt of court RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF THE SUPREME COURT,
197554
In exercise of the powers under section 23 of the Contempt of Courts Act, 1971, read with article 145 of the Constitution of India and all other powers enabling it in this behalf, the Supreme Court hereby makes, with the approval of the President, the following rules: 1. (1) These Rules may be called the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975. (2) They shall come into force on the date of their publication in the Official Gazette. PART I 2. (1) Where contempt is committed in view or presence or hearing of the Court, the contemner may be punished by the Court before which it is committed either forthwith or on such date as may be appointed by the Court in that behalf. (2) Pending the determination of the charge, the Court may direct that the contemner shall be detained in such custody as it may specify: Provided that the contemner may be released on bail on such terms as the Court may direct. PART II 3. In case of contempt other than the contempt referred to in rule 2, the Court may take action: (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or
54
Vide G.S.R. 142, dated 24th January, 1975 (w.e.f. 1-2-1975).
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(c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General. 4. (a) Every petition under rule 3(b) or (c) shall contain: -(i) the name, description and place of residence of the petitioner or petitioners and of the persons charged; (ii) nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt, as may be necessary for the proper determination of the case; (iii) if a petition has previously been made by him on the same facts, the petitioner shall give the details of the petition previously made and shall also indicate the result thereof; (b) The petition shall be supported by an affidavit. (c) Where the petitioner relies upon a document or documents in his possession or power, he shall file such document or documents or true copies thereof with the petition. (d) No Court-fee shall be payable on the petition, and on any documents filed in the proceedings. 5. Every petition under rule 3 (b) and (c) shall be posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that no prima facie case has been made out for issue of notice, may dismiss the petition, and, if not so satisfied direct that notice of the petition be issued to the contemner. 6. (1) Notice to the person charged shall be in Form I. The person charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceeding, and shall continue to remain present during hearing till the proceeding is finally disposed of by order of the Court.
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(2) When action is instituted on a petition, a copy of the petition along with the annexures and affidavits shall be served upon the person charged. 7. The person charged may file his reply duly supported by an affidavit or affidavits. 8. No further affidavit or document shall be filed except with the leave of the Court. 9. Unless otherwise ordered by the Court, seven copies of the paper book shall be prepared in the Registry, one for the petitioner, one for the opposite party and the remaining for the use of the Court. The Paper Book in the case shall be prepared at the expense of the Central Government and shall consist of the following documents:(i) Petition and affidavits filed by the petitioner, (ii) A copy of, or a statement relating to, the objectionable matter constituting the alleged contempt, (iii) Reply and affidavits of the opposite party, (iv) Documents filed by the parties, (v) Any other documents which the Registrar may deem fit to include. 10. The Court may direct the Attorney General or Solicitor General to appear and assist the Court. 11. (1) The Court may, if it has reason to believe, that the person charged is absconding or is otherwise evading service of notice, or if he fails to appear in person or to continue to remain present in person in pursuance of the notice, direct a warrant bailable or non-bailable for his arrest, addressed to one or more police officers or may order attachment of property. The warrant shall be issued under the signature of the Registrar. The warrant shall be in Form II and shall be executed, as far as may be, in the manner provided for execution of warrants under the Code of Criminal Procedure.
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(2) The warrant shall be executed by the officer or officers to whom it is directed, and may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. (3) Where a warrant is to be executed outside the Union Territory of Delhi, the Court may instead of directing such warrant to police officer, forward it to the Magistrate of the District or the Superintendent of Police or Commissioner of Police of the district within which the person charged is believed to be residing. The Magistrate or the police officer to whom the warrant is forwarded shall endorse his name thereon, and cause it to be executed. (4) Every person who is arrested and detained shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. 12. The Court may, either suo motu, or on motion made for that purpose, order the attendance for cross-examination, of a person whose affidavit has been filed in the matter. 13. The Court may make orders for the purpose of securing the attendance of any person to be examined as a witness and for discovery or production of any document. 14. The Court may pass such orders as it thinks fit including orders as to costs which may be recovered as if the order were a decree of the Court. 15. Save as otherwise provided by the rules contained herein, the provisions of the Supreme Court Rules, 1966, shall, so far as may be, apply to proceedings in relation to proceedings in contempt under this Part.
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PART III 16. Where a person charged with contempt is adjudged guilty and is sentenced to suffer imprisonment, a warrant of commitment and detention shall be made out in Form IV under the signature of the Registrar. Every such warrant shall remain in force until it is cancelled by order of the Court or until it is executed. The Superintendent of the Jail shall in pursuance of the order receive the person so adjudged and detain him in custody for the period specified therein, or until further orders.
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THE SUPREME COURT RULES, 1966

FORM I
NOTICE TO A PERSON CHARGED WITH CONTEMPT OF COURT [Rule 6] IN THE SUPREME COURT OF INDIA (Original Jurisdiction) Whereas your attendance is necessary to answer a charge of Contempt of Court by (here briefly state nature of the contempt). You are hereby required to appear in person (or by Advocate if the Court has so ordered) before this Court at New Delhi on the_________day of_____200__ at 10.30 oclock in the forenoon. You shall attend the Court in person* on the _________day of______200__and shall continue to attend the Court on all days thereafter to which the case against you stands adjourned and until final orders are passed on the charge against you. Herein fail not. Dated this _______day of ____200__ (SEAL)
REGISTRAR
*To be omitted where the person charged is allowed or ordered to appear by Advocate.
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FORM II
WARRANT OF ARREST [Rule II] IN THE SUPREME COURT OF INDIA (Original Jurisdiction) To (Name and designation of the person or persons who is or are to execute the warrant) Whereas ___________of_____________is charged with committing contempt of this Court, you are hereby directed to arrest the said______and to produce him before this Court on the_______day of______200__ at 10.30 oclock in forenoon. Herein fil not. (If the Court has issued a bailable warrant, the following endorsement shall be made on the warrant) If the said_______shall give bail in the sum of Rs._________with one surety in the sum of Rs._________( or two sureties each in the sum of Rs.__________) to attend before this Court on the _______day of_____200___, at 10.30 oclock in the forenoon and to continue so to attend until otherwise directed by this Court, he may be released.
(SEAL)
REGISTRAR
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FORM III BOND AND BAIL-BONDS AFTER ARREST UNDER A WARRANT IN TH E SUPREME COURT OF INDIA (Original Jurisdiction) I,____________(name) of_____________being brought before the District Magistrate of_____________(or as the case may be) under a warrant issued to compel my appearance to answer to the charge of contempt of the Supreme Court do hereby bind myself to attend the Supreme Court on the _________day of_________next, to answere to the said charge, and to continue so to attend, until, otherwise directed by the Supreme Court, and in case of my making default herein, I bind myself to forfeit to Union India, the sum of rupees______________________ Dated this__________day of____________200___ (SIGNATURE) I do hereby declare myself surety for the above named of_________that he shall attend before_____________in the Supreme Court on the __________day of_________next, to answer to the charge on which he has been arrested, and shall continues to attend until otherwise directed by the Supreme Court, and, in case of his making default therein, I bind myself to forfeit to Union of India, the sum of rupees_______________. Dated this_________day of______200__
(SIGNATURE)
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FORM IV WARRANT OF COMMITMENT FOR CONTEMPT [Rule 16] IN THE SUPREME COURT OF INDIA (Original Jurisdiction) To the Superintendent (or Keeper) of the Jail at__________ Whereas at the Court Holden on this day (name and description of the contemner) has been adjudged by the Court guilty of willful contempt of Court, and he has been sentenced to suffer imprisonment for the period___________(here specify the term) and/or to pay a fine of rupees_______ This is to authorise and require you, the Superintendent (or Keeper) of the said Jail, to receive the said (name of the contemner) into your custody, together with this warrant, and him safely to keep in the said Jail for the said period of (term of imprisonment) or for such shorter period as may hereafter be fixed by order of this Court and intimated to you. You are directed to return this warrant with an endorsement certifying the manner of its execution. You are further directed that while the said__________is in your custody, produce the said__________before the Court, at all times when the Court shall so direct. Given under my hand and the seal of the Court, this_________day of______200__
(SEAL) REGISTRAR
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Defences to Contempt
Impossibility of Performance: A Complete Defense

In any contempt proceeding for failure to obey a court order, the inability to obey the particular order is a complete defense. 55 This is known as the "impossibility of performance" defense. This defense will be available so long as the inability to comply or the impossibility to perform was not created by the individual to whom the order is directed at the time of, or close in time to, the court's order being issued. The court will examine the nexus in time between the date the impossibility was created and the date the court's order issued. If a nexus is found between these two dates such that it can be shown by the requisite burden of proof that the defendant knew or reasonably should have known at the time the impossibility was created that a court order would enter, the court will likely find the impossibility was created in bad faith and the impossibility of performance defense will likely be lost. The impossibility of performance defense is outlined by the Second Circuit Court of Appeals in the case of Badgley v. Santacroce:56 The purpose of civil contempt, broadly stated, is to compel a reluctant party to do what a court requires of him. Because compliance with a court's directive is the goal, an order of civil contempt is appropriate "only when it appears that obedience is within the power of the party being coerced by the order."57 A court's power to impose coercive civil contempt is limited by an individual's ability to comply with the court's
55 56
United States v. Bryan, 339 U.S. 323, 330 (1950) 800 F.2d 33 (2nd Cir. 1986 57 Maggio v. Zeitz, 333 U.S. 56, 69, 92 L.Ed. 476, 68 S.Ct. 401 (1948).
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coercive order.
58
A party may defend against contempt by showing
that his compliance is "factually impossible."59 In the arena of asset protection planning, the creation and funding of the planning structure takes place well in advance of any dispute or claim giving rise to proceedings in which a subpoena, court order compelling action, or the like will issue. As such, the time nexus between the creation of the trust (i.e., what one might claim is the act that creates the inability to perform) and the issuance of some future subpoena or court order, will be absent. In this case, the defense of impossibility of performance can be expected to be a complete defense to a proceeding of contempt of court When determining whether an alleged contemnor has the ability to comply with a court's order, the court is generally limited to examining the facts and circumstances that exist at the time the order is issued that create the impossibility on the part of the contemnor. Thus, in the Rylander case,
60
the court ordered Rylander to produce
certain corporate documents. At the time the order entered, Rylander did not have possession of the documents and was no longer a corporate officer. Because insufficient proof was offered to show Rylander had actual possession of the documents and that he did not have access to the documents without committing some extreme act, the United States Supreme Court permitted his defense of impossibility and ruled Rylander could not be held in contempt of the court's order. Self-Created Impossibility and Good Faith Inability to comply with a court's order will not be recognized as a valid defense in those situations where the impossibility to perform was self-created for the specific purpose of avoiding a court's order or subpoena that has been
58
Shillitani v. United States, 384 U.S. 364, 371, 16 L.Ed. 2d 622, 86 S.Ct. 1531 (1966); Maggio v. Zeitz, supra, 333 U.S. at 72-73. 59 United States v. Rylander, 460 U.S. 752, 757, 75 L.Ed. 2d 521, 103 S.Ct. 1548 (1983).
60
United States v. Rylander, 460 U.S. 752 (1983)
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or is about to be issued.61 In other words, the mere fact that the defendant created the impossibility is not of particular relevance. It is when the defendant creates the impossibility that is important. In situations where courts have examined the issue of self-created impossibility, the courts have consistently ruled that contempt will not apply unless the alleged contemnor acted in bad faith. Bad faith will not be found unless there exists some nexus in time between the creation of the impossibility and the issuance of the court's order or subpoena. In the Blaine case,62Blaine claimed he was unable to comply with a court's order to produce corporate documents, for which he served as president, on the basis he had transferred all of the documents to his attorney five months prior to being served with the subpoena. When the order to produce the documents was issued, Blaine's attorney returned the documents to him, but several files were missing. When the attorney and Blaine testified they did not know the whereabouts of the missing files, the court found no basis for a finding of bad faith and thus no contempt. Specifically, the court ruled, "it must appear by the legal preponderance of the evidence that . . . at the time of the service of the subpoena [the defendant] had possession or control of the documents."63 Contrast the result in Blaine with the result in Goldstein. In the latter case, the Second Circuit Court of Appeals found the defendant's inability to comply with a subpoena for the production of documents to have been created in bad faith.64 The defendant disposed of documents subject to the subpoena eleven days prior to the issuance of the subpoena and had reason to know the subpoena would be
61 62
See 17 C.J.S. Contempt 19 (63) See Federal Trade Commission v. Blaine, 308 F. Supp. 932 (N.D. Ga. 1970); see also Ex parte Fuller, 50 S.W. 2d 654 (Mo. 1932) 63 Id. at 932-33 64 United States v. Goldstein, 105 F.2d 150 (2nd Cir. 1939)
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issued at or about the time he undertook to dispose of the documents. As such, the court found the defense of impossibility of performance to be ineffective.
Proving Good Faith

As part of the showing of good faith, the defendant needs to be prepared to prove there was no ability to perform. Specifically, the defendant must show he took steps within his power to comply with the court order and must offer proof to this extent.65 Furthermore, the inability must be shown to have existed for a period of time sufficient to avoid a nexus in time being established between the time the inability to perform arose and the time the order or subpoena issued. For asset protection planning purposes, the earlier steps are taken to move the assets offshore and into the complete control of the foreign trustee, the more likely the impossibility defense will prevail. Thus, the more tenuous the nexus in time, the more difficult it will be for the court to find bad faith on the part of the alleged contemnor. In addition, the defendant must make all reasonable attempts to comply with the court's order and adequately document all such efforts.
Tendering & Acceptance of apology
The apology to be available to the contemnor must be sincere and unconditional. It must be definite and must be made early enough in the proceedings to merit full consideration. The Supreme court in Re Vinay Chandra Mishra66 [the alleged contemner] had rejected the
65
Stotler and Co. v. Able, 870 F.2d 1158 (7th Cir. 1989); Foust v. Denato, 175 N.W.2d 403 (Iowa 1970)
66
AIR 1995 SC 2348; (1995) 2 SCC 584
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apology on the following grounds; The contemner has no doubt tendered an unconditional apology on 7th October, 1994 by withdrawing from record all his applications, petitions, counter
affidavits, prayers and submissions made 619 at the Bar and to the court earlier. We have reproduced that apology verbatim earlier. In the apology he has pleaded that he has deeply and regretfull realised that the situation, meaning thereby the incident, should never arisen and remorse and a feeling of moral holding the elective posts of have and the fact that it arose has subjected him to anguish guilt. That feeling has been
compounded with the fact that he was a senior advocate and was the President of the High Court Bar Association and the Chairman of the Bar Council of India which by their nature show that he was entrusted by his professional fraternity to set up an example of an ideal advocate. He has guiltily realised his ailure to approximate to this standard resulting submitting in the present proceedings and he was, therefore, apology for the incident in question. We have not accepted this apology, firstly because we find that the apology is not a free and frank admission of the misdemeanor he indulged in the incident in question. Nor is there a sincere regret for the disrespect he showed to the learned Judge and the Court, and for the harm that he has done to the judiciary. On the other hand, the apology is couched in a sophisticated and garbed language exhibiting more an attempt to justify his conduct by reference to the circumstances in which he had indulged in it and to exonerate himself from the offence by pleading that the condition in which the It is a clever and disguised "situation" had developed was not an ideal one and were it ideal, the "situation" should not have arisen. only not exhibiting attempt to refurbish his image and get out of a tight situation by not the least sincere remorse for his conduct but by his unconditional
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trying to blame the so-called circumstances which led to it. At the same time, he has attempted to varnish and re-establish himself as a valiant defender of his "alleged duties" as a lawyer. Secondly, from the very inception his attitude has been defiant and belligerent. In his affidavits and application, not only he has not shown any respect for the learned Judge, but has made counterallegations against him and has asked for initiation of contempt proceedings against him. He has even chosen to insinuate that the learned Judge by not taking contempt action on the spot and instead writing the letter to the Acting Chief Justice of the High Court, had adopted a devious way and that he had also come to Delhi to meet " meaningful" people. These allegations may themselves amount to contempt of court. Lastly, to accept any apology for a conduct of this kind and to condone it, would tantamount to a failure on the part of this Court to uphold the majesty of the law, the dignity of the court and to maintain the confidence of the people in the judiciary. The Court will be failing in its duty to from attempts to protect the administration of justice enigrate and lower the authority of the judicial
officers entrusted with the sacred task of delivering justice. A failure on the part of this Court to punish the offender on an occasion such as this would thus be a failure to perform one of its essential solemnly entrusted to all these it duties by the Constitution and the people. For
reasons, we unhesitatingly reject the said so called apology
tendered by the contemner.
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CHAPTER-III Constitutional Aspect of Contempt of Court
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Supreme Court RulesContempt of court Contempt of court vis-a-vis Freedom of Speech and expression
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something Denning The Constitution has no doubt been created by the people. But this instrument has itself created the Courts, which means that the people in their wisdom realized that there must be a forum (or fora) where disputes between the people could be resolved and grievances of the people redressed peacefully. It is in the nature of things that in every society there will be disputes between the people and grievances of the people. If there is no forum to resolve these disputes and redress these grievances peacefully, they will be resolved violently with bombs, guns, knives and lathis. Hence the judiciary is a great safety valve. By giving a hearing to a person having a grievance, and by giving a verdict on the basis of settled legal principles, the Court pacifies that person, otherwise the grievance may erupt violently. The judiciary thus maintains peace in society, and no society can do without it. Looking at it from this angle one can immediately realize that in a democracy the purpose of the Contempt of Court power can only be to enable the Court to function. The power is not to prevent the master (the people) from criticizing their servant (the Judges) if the latter do not function properly or commit misconduct. far more important at stake. It is no less than freedom of speech itself. Lord
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Article 19(1)(a) of the Constitution gives the right of freedom of speech and expression to all citizens. But Articles 129 and 215 give the power of Contempt of Court to the higher judiciary, and this power limits the freedom granted by Article 19(1)(a). How are these two provisions to be reconciled? In my opinion once it is accepted that India is a democracy, and that in a democracy the people are supreme, the reconciliation can only be affected by treating the right of the citizens of free speech and expression under Article 19(1)(a) to be primary, and the power of contempt to be subordinate. In other words, the people are free, and have the right to criticize Judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult. Thus the test to determine whether an act amounts to Contempt of Court or not is this : does it make the functioning of the Judges impossible or extremely difficult? If it does not, then it does not amount to Contempt of Court, even if it is harsh criticism.67 In a speech delivered on 1.12.2001 in Jaipur on the topic The Law of Contempt is it being stretched too far? The doyen of the Indian Bar, Mr. Fali Nariman, said that the offence of `scandalizing the Court is a mercurial jurisdiction in which there are no rules and no constraints. I may quote an entire long passage from this speech: It was Jeremy Bentham (the theoretical jurist) who characterized the Common Law as Dog Law. When your dog does anything you want to break him off, (he wrote in 1823), you wait till he does it, and then beat him for it. This is the way you make laws for your dog, and this is the way judges make laws for you and me. The law of contempt of court in Anglo-Saxon jurisprudence both in England in the past, and in India in the past and present, has been no Justice Markandey Katju, Judge, Supreme Court of India; 2007 CriLJ/Vol. 16; XII
67
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more, no less than Dog-Law. There are no rules, no constraints no precise circumstances when the administration of justice is brought into contempt. The judgments are strewn with pious platitudes that give little guidance to the editor, to the commentator, to lawyers, and to members of the public: this part of the law of contempt though necessary, is a standing threat to free expression. It leaves too much to the discretion of the particular judge (or judges). And at times decisions do give rise to a strange feeling that the status of the person who scandalizes the Court perhaps did affect the ultimate result. The criticism of Mr. Nariman about the uncertain state of affairs regarding the Law of Contempt appears to be justified. To give an example, in P.N. Duda vs. P. Shiv Shanker AIR 1988 SC 1208, the speech delivered by the then Union Law Minister Mr. P. Shiv Shanker in substance was similar to the one delivered by the then Chief Minister of Kerala Mr. Nambudiripad. However, Mr. Nambudiripad was held to be guilty of contempt of Court (vide AIR 1970 SC 2015) but Mr. Shiv Shanker was not. Is this not uncertainty in the law? It may be noted that Mr. Nambudiripad in his speech had accused the Judges of being biased in favour of rich people and against the poor. In substance this was the same allegation which was made by Mr. Shiv Shanker The uncertainty in the Law of Contempt of Court was, in my opinion, for two reasons (1) In the Contempt of Courts Act, 1952 there was no definition of `contempt, (2) even when a definition was introduced by the Contempt of Courts Act, 1971 (vide Section 2) there was no definition of what constitutes scandalizing the Court, or what prejudices, or interferes with, the course of justice. What could be regarded as scandalous earlier may not be regarded as scandalous today and what could earlier be
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regarded as prejudicing or interfering with the course of justice may not be so regarded today. The view about the contempt power was first stated in England by Wilmot J. in 1765 in a judgment which was in fact never delivered (R. vs. Almon). In that opinion Wilmot J. observed that this power in the Courts was for vindicating their authority, and it was coeval with their foundation and institution, and was a necessary incident to a Court of Justice. The above dictum was thereafter followed by successive Courts not only in England but also in other countries. Thus the power of Contempt was said to be required for maintaining the dignity and vindicating the authority of the Court. But whence comes this authority and dignity of the Court? In England it came from the King. The judicial function is a sovereign function. The King was the fountain of justice, and in earlier times he would himself decide cases. It was only subsequently when the king had many other functions (military, administrative, etc.) that he delegated judicial functions to his delegate, who began to be called Judges. Thus in a monarchy the Judge really exercises the delegated functions of the King, and for this he requires dignity and majesty as a King must have, to get obedience from his subjects. The situation becomes totally different in a democracy in which it is the people, and not the King, who are supreme. Here the Judges get authority delegated to them by the people, and not by a king. We may analyze this a little deeper. In a monarchy it is the King which is the superior entity, while the people, being his subjects, are the inferior entity. Since the Judges are really performing the delegated functions of the King, they need the majesty and aura which the King needed to secure obedience from his subjects. In a democracy, on the other hand, it is the people who are supreme, and therefore they are the superior entity, while all State authorities (including Judges) are inferior entities, being the servants of the
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people. Hence in a democracy there is no need for Judges to vindicate their authority or display majesty or pomp. Their authority will come from the public confidence, and this in turn will be an outcome of their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy by Judges, and there is no need for them to display majesty and authority. The view expressed above is in fact accepted now even in England. As observed by Lord Salmon in AG vs. BBB68. The description `Contempt of Court no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice. This is precisely the thesis which is sought to propounded in this paper. The contempt power in a democracy is only to enable the Court to function, and not to vindicate and maintain its authority and dignity. In Almons case, to which we have already referred, the defendant had published a pamphlet accusing Lord Mansfield, the Lord Chief Justice of having acted `officiously, arbitrarily and illegally. Wilmot J. observed that this: excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever mens allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the Kings justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary.69
68
(1981) AC 303 ; (1980) 3 All ER 161 (170)

Millers Contempt of Court 3rd Edition page 568)
69
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Wilmot Js opinion was expressed in 1765. Can it be said to be the Law of Contempt of Court in England today? Hardly. Even though there is no written Constitution in England and hence no Fundamental Right like Article 19(1)(a), the old view of Contempt of Court is totally changed today even in England, and now the view is that of Lord Salmon, as mentioned above. Justice is not a cloistered virtue, said Lord Atkin, and must suffer the scrutiny and outspoken comments of ordinary men. In fact exposure to criticism only strengthens the judiciary, far from weakening it. As observed by Lord Denning in R v/s Commissioner of Police70, It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. The best shield and armour of a Judge is his reputation of integrity, impartiality, and learning. An upright Judge will hardly ever need to use the contempt power in his judicial career. It is only in a very rare and extreme case that this power will need to be exercised, and that, too only to enable the Judge to function, not to maintain his dignity or majesty. Sometimes an honest and learned Judge is unjustifiably criticized. But for one such person criticizing an upright Judge one hundred people will immediately rush to his defence (even without the Judge asking for such defence). Why then, should Judges get upset or be afraid of
70
(1968) 2 QB 150:
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criticism, particularly when we are living in a democracy? As long as the Judge is allowed to function, the best course for him is to ignore baseless criticism (but pay heed to honest and correct criticism). Infact the definition of contempt in American Jurisprudence
71
is wide
off the mark in modern times in a democracy. It is a hangover of the archaic and obsolete British Law of Contempt which originated at a time when the British King was supreme, and the Judges were his agents. In a democracy it is not criticism by a few persons which brings a Judge into disrepute or shakes his authority, it is his own conduct (or rather misconduct) which can do so. If a Judge is honest and upright (and the people know about the integrity of a Judge very quickly) no amount of misguided and baseless criticism can bring him into disrepute or shake his authority, for such authority comes from the confidence of the public at large. We may now come back again to the central point in this paper. I submit that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court (for it is automatically vindicated and upheld by the proper conduct of the Judge, not by threats of using the contempt power) but only to enable the court to function. The contempt power should only be used in a rare and very exceptional situation where without using it, it becomes impossible or extremely difficult for the court to function. In such rare and exceptional situations, too, the contempt power should not be used if the mere threat to use it suffices. It has, no doubt, been mentioned in Section 2(c) of the Contempt of Courts Act, 1971 that any act which scandalises or tends to
71
(1964 Second Edition, Vol. 17 page 6)
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scandalize, or lowers or tends to lower the authority of any court is contempt of court. But what is the meaning of scandalising? The meaning of words, and our notions, change with the passage of time. For instance many things which were regarded obscene earlier are no longer regarded obscene, today. Does calling a Judge a fool scandalize him? In this connection we may refer to the decision of the House of Lords in the Spycatcher case, vide Attorney General v. Guardian Newspaper72 .The facts of the case were that a former spy, Peter Wright, wrote a book entitled Spycatcher about his days in the British Intelligence Agency MI5. The British Government filed an injunction suit to restrain publication of the book on the ground that the material in the book was confidential and was prejudicial to national security. By a 3-2 majority the House of Lords granted the injunction. The Press was outraged. The Daily Mirror, for example, ran a banner headline next day accompanied by upside down photographs of the majority Judges and the caption YOU FOOLS. Mr.Nariman, who was in England at that time, asked Lord Templeman (the Senior Judge in the majority) why no contempt proceedings were initiated. Lord Templeman smiled, and said that Judges in England did not take notice of personal insults. Though he believed he was not a fool, others were entitled to their opinion. Thus the concept of scandalising the court has changed. In earlier times a person who called a Judge a fool in England would certainly be hauled up for contempt; today he would not. And the reasons for this change is, as Lord Salmon has pointed out, that today the contempt power is not used for vindicating the authority of the Judge but only for enabling him to function. If for instance, a person keeps shouting or whistling in my court repeatedly, and does not stop
72
1987(3) All.E.R. 316 (H.L.).
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despite my repeated requests, obviously I will have to take some action to enable me to function. After all people are paying taxes from which I get my salary and perks, and I have to justify this salary by deciding their disputes. Similarly, if someone threatens a party or witness in a case, I will certainly take action. But if a person calls me a fool, whether inside court or outside it, I for one would not take action as it does not prevent me from functioning, and I would simply ignore the comment, or else say (like Lord Templeman) that everyone is entitled to his opinion. In Balogh v. Crown Court at St.Albans73 the defendant told the Judge in Court You are a humourless automaton. Why dont you self-destruct? Lord Denning said that such insults are best treated with disdain, and took no action. There may, of course, be differences of opinion about what acts prevent, or make it very difficult, for a Judge, to function. For instance, do comments by the public (including lawyers, journalists, etc.), or publicity in the media, about a pending case prevent, or make it very difficult, for the Judge to function? I, for one, am inclined to think that it does not. A Judge should have the equanimity and inner strength to remain unperturbed and unruffled in any situation. In my opinion a fresh and modern, democratic approach, like that in England, USA and commonwealth countries, is now required in India to do away with the old anachronistic view. Contempt jurisdiction is now very sparingly exercised in these western countries. Thus in Defence Secretary v. Guardian Newspapers (1985) 1 A.C. 339 (347) Lord Diplock observed that the species of contempt which consists of scandalising the judges is virtually obsolescent in England and may be ignored.
73
(975 QB 373)
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Moreover, it must always be remembered that contempt jurisdiction is discretionary jurisdiction. A Judge is not bound to take action for contempt even if contempt has in fact been committed. In this connection reference may be made to the recent amendment to the Contempt of Courts Act (the contempt of Courts Amendment Act, 2006) which has introduced a new Section 13(b) which states: The courts may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. Thus, truth is now a defence in contempt of court proceedings if it is in public interest and is bona fide. This amendment is in the right direction, and was long overdue. But the Supreme Court has also in many of its judgments have restored the fact that the right to freedom of speech and expression guaranteed in Article 19(1)(a) does not embrace the freedom to commit contempt of court. In D.C Saxena v. Honble CJI74 it was held commission of contempt of court is not permissible while exercising the guaranteed right of freedom of speech and expression. In Rustom Cooper v. UOI75 the Supreme Court emphasized that while fair and temperate criticism of the court or any other court, even if strong, may not actionable, attributing improper motives or tending to bring judges or courts into hatred and contempt or obstructing directly or indirectly with the functioning of courts is serious contempt of which notice must be taken, so as to caution the persons who embark on the path of criticism.
74 75
(1996) 5 SCC 216 (1970) 2SCC 298
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Does the Law of Contempt offend Article 21 of
the Constitution?
As jurisdiction to punish for contempt is inherent in all courts of record and it is sui generis , no procedure has been prescribed for its enforcement except what the courts themselves followed as necessary in the interests pf justice. And therefore it was urged in State of Bombay v. Mr. P,76 that punishment in contempt does deprive a person of his liberty and that since there was no prescribed procedure for contempt proceedings, the law of contempt offended Article 21 and as such was ultra vires. The Bombay High court negatived these arguments on the simple ground that the existing procedures for contempt proceedings do have statutory sanction. Section 3 of the Contempt of Courts Act provides that every High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same practice and procedure in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt itself. So the Court in view of these provisions held that the High court as a court of record is entitled to deprive a person of his liberty in matters relating to contempt when that procedure has been followed.
76
AIR 1959 Bom 182
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CHAPTER- IV Some Instances of Contempt of Court
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Outrages on court, throwing missiles at a judge,
77
throwing a stone at
him or an egg78, disturbances and interruptions in court while in sitting79, defiance and insult to a judge such as by an advocate snatching a court document,80 burning a court document81 , making unfair and insulting remarks at the judge, private communication to judges,82 are all various acts of contempt which invite punishment. When a judge is pronouncing judgment, for a man to jump up, wave his hand and shout an exclamation of approval is contempt. Applauding in open court is contempt.83 In India the following instances have been held to be contempt of court; making or disparaging remarks by an advocate against the subjudge on failure to obtain an ad-interim order,
84
advocate raising pitch
of his voice unusually high as to the annoyance of the Magistrate before whom he was conducting trial for an accused and also using derogatory language85, filing false affidavit or making false affidavit on oath which has the tendency to impede, obstruct and interfere with the administration of justice86, removing a counsels brief to make improper use of it , is contempt87, an article published in a weekly newspaper contained highly objectionable, scandalising remarks, about courts, the author, proprietor and editor and owner of the printing press were all held guilty of contempt.
88
77 78
Anon 1931 Dy. 188B.N Cosgrave, In re, (1877) Seaton Judgments and orders, Edn. 6, p.465 79 Stone case, (1796) 6 Term Rrep 527: 25 St.Tr. 1165 80 Walt v. Lergertwood,(1874)LR 2H LS367 81 Oswald, p. 47 Times, 19893 April19th 82 Bahama Island, IN re, ASP and 1893 AC 138 83 Oswald, p.19 84 M.B Sanghi, Advocate v. high Court of Punjab and Haryana, (1991) 3SCC 600 85 K.A Mohd. Ali v. C.N.Prasannan, 1994 Supp(3) SCC 509 86 Dhananjay Sharma v. State of Haryana, (1995) 3SCC 757 87 Bateman v. Cconvey,(1753)1 Bro Parl Case 519 88 Khusi Ram v. Honble High court P&H; AIR 1992 SC 2203
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But the most amusing illustration of Contempt of Court was when a cartoonist working with a leading newspaper got sentenced for four months by Delhi Court allegedly for the following act.;
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'Midday contempt of court case- Irfan got sentenced 4 months jail by Delhi High Court over making a cartoon on former Chief Justice of India'
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Followed by a Cartoon
The notice served by Delhi high court to Irfan over the cartoon on former Chief Justice of India
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High Court Sentenced .....
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Reactions....
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and the fight continues in Supreme Court of India till date......
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CHAPTER- V The Law of Contempt in other Countries International law and standards
The common law doctrine of contempt of court does not exist in civil law jurisdictions in such a broad, encompassing sense,89 but there are undoubtedly functional equivalents, particularly in matters relating to freedom of expression. In France, for example, Article 9-1 (Protection de la presomption dinnocence) of the Civil Code deals with publications which allegedly prejudice the presumption of innocence. There are also laws restricting the criticism of courts and judges in many civil law jurisdictions.90
89
See M. Chesterman, Contempt: In the Common Law, but not the Civil Law (1997) 46 ICLQ 521. 90 See M.K. Addo, Freedom of Expression and Criticism of Judges (Ashgate Publishing, 2000).
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Before
examining
the
legal
framework
regulating
freedom
of
expression and the administration of justice in different countries, it is useful to look at their status under international law. The major international and regional human rights instruments on civil and political rights the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples Rights (ACHPR) all protect both freedom of expression and the administration of justice. Freedom of expression is protected in Article 19 of the ICCPR as follows: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The administration of justice, particularly the right to a fair trial and the presumption of innocence, is protected in Article 14 of the ICCPR, which states, in part: (1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment
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rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or guardianship of children. (2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. The permissible restrictions on freedom of expression are expressed in similar terms in the international and regional instruments, but the ECHR is more explicit than the others in setting out the protection of the administration of justice as a legitimate exception. Article 19(3) of the ICCPR states: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights and reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. The rights of others referred to in Article 19(3)(a) undoubtedly includes rights linked to the administration of justice, such as the right to a fair trial and the presumption of innocence. Article 10(2) of the ECHR goes even further, explicitly mentioning the maintenance of the authority and impartiality of the judiciary: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation
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or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Under the ICCPR, restrictions must meet a strict three-part test. 91 First, the interference must be provided for by law. The law must be accessible and formulated with sufficient precision to enable the citizen to regulate his conduct.92 Second, the interference must pursue one of the legitimate aims listed in Article 19(3). Third, the interference must be necessary to secure that aim. The test is similar under the ECHR, as the following passage demonstrates: (a) Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. (b) These principles are of particular importance as far as the press is concerned. While it must not overstep the bounds set, inter alia, in the interests of national security or for maintaining the authority of the judiciary, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas; the public has a right to receive them. Were it otherwise, the press would be unable to play its vital role of public watchdog. (c) The adjective necessary, within the meaning of Article 10(2), implies the existence of a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision,
91
See Mukong v. Cameroon, views adopted by the UN Human Rights Committee on 21 July 1994, No.458/1991, para. 9.7. 92 The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229, para. 49.
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embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article10. (d) The Courts task , in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised it discretion reasonably, carefully and in good faith; what the Court has to do is look at the interference complained of in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it are relevantand sufficient.93 At the level of international and regional judicial bodies, it appears that only the European Court of Human Rights has discussed the relationship between freedom of expression and the administration of justice in any detail. As will be discussed later in this paper, the Court has generally found that restrictions are prescribed by law and that ensuring a fair trial or maintaining the authority of the judiciary are legitimate aims. The crux of the issue has been whether the restrictions are necessary in a democratic society.
Law on Contempt of Court in England

93
Sunday Times v. UK (No.2), 26 November 1991, Series A No. 217, 14 EHRR 229, para. 50.
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The Contempt of Court Act, 1981 governs the law on Contempt in England. Section 14 particularly of the Act contempt and kindred offences. The Contempt of Court Act 1981 was brought in with the intention of promoting freedom of speech and as a result of a Human Rights decision by the European Court of Human Rights in which it was decided that the previous common law notion of contempt of court in fact breached Article 10 of the European Convention on Human Rights. Section 2(2) of the Contempt of Court Act 1981 states that where any publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced contempt of court will be found. The offence of contempt of court is a strict liability offence. This means that someone who has published material which has interfered with the course of justice will be found in contempt of court regardless of whether they intended to do so. What needs to be present to establish Contempt of Court? The following elements need to be established in order for Contempt of Court to be found:

deals with penalties for
There needs to be a publication In relation to proceedings which are active It relates only to a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced
For contempt of court to be found the proceedings must be active as defined by the Contempt of Court Act 1981. There are different tests to
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establish whether proceedings are active for criminal courts and civil courts. Criminal proceedings will become active when one of the following happens:

Arrest without a warrant The issue of a warrant for arrest The issue of a summons to appear before the court The service of an indictment or other document specifying the charge An oral charge Criminal proceedings will conclude and therefore cease to become active when one of the following happens: An acquittal or a sentence Any other verdict or finding or other decision which puts an end to the proceedings By discontinuance or operation of law
The Contempt of Court Act 1981 provides that civil proceedings become active from the time when arrangements are first made for the hearing of the case or from when the hearing begins. This active period is deemed to conclude when the proceedings are disposed of by settlement or judgment or are discontinued or withdrawn.
However the law of contempt has attracted criticism on three main grounds. It is distinguished from the general criminal law by its curious procedure which deprives an accused of the safeguards normally vouchsafed in British law. It is also uncertain in its application, and so runs counter to that aspect of rule of law according to which no man should be punishable except for a distinct breach of law. It is argued
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that the law of contempt has a broader scope than it is strictly justified by its purposes , and that this has led to unjustifiable infringment of liberty. The following are some of the provisions of the Act in England.
Contempt Law in United States

Both State and Federal Courts have broad discretion to impose sanctions on an individual found to be in contempt of court. penalties include money penalties, forfeiture of rights, imprisonment. Such and
When analyzing the issue of whether a settlor of an
asset protection trust (or any other trust for that matter) may be held in contempt of court, the court must consider whether the settlor's actions come within the definition of contempt, and whether any valid defenses exist. drafted, properly Under an asset protection trust that is properly implemented and properly administered, the
"impossibility of performance" defense to a charge of contempt will be a complete defense to any such charge, so long as the impossibility is not "self-created" in close time proximity to the issuance of the court order or subpoena. In a lecture by Justice William on making a comparative analysis of the Law in India and American drew certain calculations. Under American Law:1. The courts will not interfere under Contempt Law unless there is a clear and present danger to the administration of justice.
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2. They will interfere when there is ex-facie contempt. 3. They will interfere when comments are made in pending proceedings which tend to provoke public resistance to the order desired for in those proceedings. The Indian law does not recognize the clear and present danger test as stated. It goes by the yardstick of reasonable restrictions and procedure established by law in contradistinction to the due process clause in America. Ex-facie contempt is of course recognized in India, U.S.A and U.K.
Law of Contempt in Sri Lanka

At present there is no codified law relating to contempt in Sri- lanka. Sri Lankan law on contempt of court has effectively resulted in a chilling of the freedoms of speech, expression and information on matters of public interest. In the first instance, what amounts to contempt has been subjected to differing interpretations by the courts, the majority of which have inclined towards conservative views. This has had an inevitable impact on public discussion of vital public interest issues due to fears that journalists or citizens voicing their opinions on particular judgments of the Court or with regard to pending adjudications, will be cited for contempt. though the Bar Association of Sri-lanka has produced a draft law on Contempt law but a codified law is still awaited.
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CHAPTER VI Need for Review of Law of Contempt
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Suggestions
It took a decade for the Government to acknowledge, under pressure of public opinion, that the law of contempt was "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens - the right to personal liberty and the right to freedom of expression. The Sanyal Committee was set up in 1961 to examine the law and suggest reforms. It took another decade for the recommendations of this committee to be implemented in the Contempt of Courts Act, 1971. The Act of 1971 offered some guidelines for reporting and comment on judicial proceedings that would not attract contempt charges. For example, "fair and accurate report of a judicial proceeding" and "fair comment on the merits of any case which has been heard and finally decided" would not be contempt. The Act also provided that contempt would not be punishable unless it "substantially interferes, or tends substantially to interfere with the due course of justice". Notwithstanding these improvements, the definitions of contempt did not do away with the uncertainty. 'Scandalizing the Court' was contempt, but what constituted 'scandalizing the Court'? Justice Krishna Iyer captured the problems inherent in the contempt law, in a 1974 judgment, in these colourful phrases: "A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process ofbrevi manu conviction, may unwittingly trench upon civil liberties ..."
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These problems, he argued, imposed a special responsibility on the higher judiciary to be vigilant and protect free speech "even against judicial umbrage". The subsequent judgment of Justice Krishna Iyer in the Mulgaonkar case in 1978 (where contempt charges against the Indian Express were withdrawn) has been seen as the beginning of a liberal trend in the treatment of contempt by scandalizing the court. However, this is not the only or even dominant trend.
"Truth" as defense
The most recent attempts to reform the contempt law started with the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 to allow 'truth' as defense in matters of Contempt of Court. While making this recommendation, the Commission observed: "Judicial decisions have been interpreted to mean that with the law as it now stands, even truth cannot be pleaded as a defense to a charge of contempt of court. This is not a satisfactory state of law. It would, indeed be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of Satyameva Jayate, in the High Courts and Yatho dharma statho jaya in the Supreme Court, the courts could rule out the defence of justification by truth." The NCRCW recommendation was not particularly revolutionary. In the UK and Australia, truth as defense to a charge of contempt by scandalising to contempt. had been available for several decades. The recommendation eventually resulted in a bill to amend the law related
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The Parliamentary Standing Committee on Personal, Public grievances, Law and Justice (Standing Committee) examined the Contempt of Courts (Amendment) Bill, 2004 and provided several interesting insights in its report. The Government had proposed to amend the 1971 Act by adding the clause: "The Court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defense is bona fide". However, the Standing Committee felt that the requirement that the 'truth' used as justification should be in public interest was an additional burden imposed on a person accused of contempt and would "virtually defeat the objective of the proposed legislation"; therefore, it recommended that the term 'in public interest' be deleted.
The law as it stands today

The Government however did not accept this demand and the contempt law was amended in 2006 in line with the above proposal. In the law as it now stands, while a person accused of contempt can seek his defense in "truth", he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide, that is, with reasonable care and caution. The Amended Section 13 of the Contempt of court Amendment Act, 2006 reads as follows: Substitution of new section for section 13.- In the Contempt of Courts Act, 1971, for section 13, the following section shall be substituted, namely:" 13. Contempts not punishable in certain cases.- Notwithstanding anything contained in any law for the time being in force,-
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(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice; (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.'' Other countries have progressed to a more liberal regime. In UK, prosecuting a person for contempt for scandalising the court is considered virtually obsolescent and the Courts have rarely used this power for several decades. In the US, the offense of scandalizing the court is unknown and US Courts initiate action for contempt only when they determine that there is 'clear and present danger' to the administration of justice. In our country, it is still too early to assess the impact of the recent changes in the law. However, what is clear is that only the judiciary, of its own accord, can make the move towards a more liberal interpretation of contempt that allows healthy criticism that can aid its own development as an institution.
Defects in existing law

Though the Amendment Act of 2006 did bring about a change as far as defence to the charge of contempt is concerned, but there still persists lacunas which need to be addressed such as follows; The Contempt of Court Act, 1971 though defines the expression contempt of court and classifies the contempts in two categories but this definition and classification are far from being
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satisfactory. The definition provided in this act, is actually not a definition but a classification, but mere classification into two categories i.e civil and contempt is not sufficient as there are many other categories. The Contempt of Court Act enables a person to make bona fide complaint concerning a sub-ordinate judge, but does not contain provision for making complaint against the judges of the High court or the Supreme court. The provisions of the Contempt of Court Act laying down the procedure to be followed in the contempt cases is not exhaustive. It does not prescribe procedure in case of contempt of court initiated under the inherent jurisdiction of the Superior court of record. Section 23 of the act empowers the Supreme Court and High Courts to make rules as to the procedure and exercise of this power the Supreme Court and the High Court have made the rules, which has resulted in uncertainty in the procedural matters. Therfore, it is suggested that the Supreme Court should be allowed to make rules with respect to contempt proceeding initiated by the High Courts all over the country.
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Conclusion
Law grows and though principles of law remain unchanged, yet their application is to be changed with the changing circumstances of the time as Lord Coleridge observed, Law of contempt of courts is not an exception to whatever stated above. Some unprecedented incidents as referred earlier offered an opportunity to the Apex Court to determine and lay down categorically the necessary and required legal principles which have far reaching ramifications in judicial process in general and law of contempt of court in particular. In the process, the apex court, it is admitted played and discharged very commendable role, sometime overruling its own decision. However, despite of judicial propriety, probity and precedents, one or the other incident does occur.94 That necessitates a belief in need of well defined and explicit or specific application of the said law. The contempt of court is a special jurisdiction and with caution whenever an act adversely effects the administration of justice or which tends to impede its course or tends to shake public in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman, and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice form being maligned. In the general interest of the community it is imperiled and there should be no unjustifiable interference in the administration of justice.
94
Chetak Construction Ltd. V. Omprakash (1988) 4 SCC 577
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But we ought never forget that power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent and indiscriminatory use of this power in anger or irrigation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity or status of their office is to deserve respect from the public at large by the quality of their judgments, the fearless, fairness and objectivity of their approach, and by their restraint, dignity and decorum, which they observe in their judicial conduct.95 However, it also casts a duty or bounden obligation on Bar, administration, litigants and general public to co-operate with judiciary in exzercis eof their privilege, rights and freedoms. Ti is true that freedom of speech and expression guaranteed by Art 19(1) (a) of the constitution is one of the most precious liberties in any democracy. But equally important is maintenance of respect for judicial independence which alone would protect the life, liberty and reputation of the citizen. The nations interest requires the that criticism of the judiciary must be measured, strictly rational, sober and proceed from the highest motives without being coloured by partisan spirit or pressure tactics or intimidatory attitude. If freedom of expression sub serves public interest in reasonable measure public justice cannot gag it, but if the court considered the attack, on the judge or judges scurrilous, offensive, intimadatory or malicious, beyond condemnable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. As Justice Krishna Iyer had rightly pointed out, in context of ExCJI Balakrishnan denying to be under the RTI scanner, Fear of contempt of court is forcing many jurists, the Bar, and journalists to remain silent. How do you otherwise explain this silence in the world's
95
Gajendragadkar CJ, AIR 1963 SC 745 AT 751
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largest democracy, while the Chief Justice of the Supreme Court seeks to keep information concerning vital aspects of the functioning of the court to himself and says he is not a public servant?
The power to punish the contemner is therefore granted to the court not because judges need the protection but because the citizens need an impartial and strong judiciary.
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Newspaper Reports
The Indian Express
Tue Feb 22 2011, 01:11 hrsNew Delhi:
Police chief earns HC ire for not reviewing false cases

The Police Commissioner was asked by the Delhi High Court on Monday to explain why contempt of court proceedings should not be initiated against him for not reviewing false criminal cases foisted on a skilled labourer in his late fifties. The cases had reportedly embroiled him in a miserable legal tangle for 15 years. Justice G S Sistani issued a notice to Police Commissioner B K Gupta on the petition filed by 56-year-old Prempal, a mason, who was allegedly harassed by the police for 15 years. The police had implicated him in cases ranging from rape, murder and drug-peddling to charges under anti-terror law TADA. The contempt petition was filed after the Delhi Police failed to comply with a High Court order on March 25, 2010, through which it had directed the police chief to give Prempal and his family a written apology on behalf of the department, besides paying him Rs. 6 lakh as compensation.
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BIBLIOGRAPHY
The material for this project has been taken from the following references:-
BOOKS:Nair, K. Balasankaran, Law of contempt of court in India, 2004; Atlantic Publishers & Distributors, Delhi Ramachandrans, Miller, C.J, V.G, Contempt of Court; of 2000 Court; Edn; 6thEdn Oxford
2002;Eastern Book Company, Lucknow Contempt University Press, London Rai Kailash, Legal Ethics, Bench and Bar Relations; 7th Edn, 2007;Central Law Publications, Allahabad
ARTICLES: Dilip Uke & Sureshchandra R. Bhosale, Legal Profession and Contempt of Court- A need for harmony and Balance; Indian Bar Review; Vol. 26(2) 1999 Justice Markandey Katju, Judge Supreme Court of India; Contempt of Court: Need for a fresh look; 2007 CriLJ/16 Vol. Dr. Janusz Kochanowski; Freedom of Speech and Contempt of Court:; www.kochanowski.pl/pub_freedomofspeech.doc
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Eliahu Harnon; Civil and Criminal Contempt of Court; The Modern Law Review ;Vol. 25, No. 2 (Mar., 1962), pp. 179189 T a run Ja in Court: Freedom of Speech versus Contempt of The law revisited;
http://legalperspectives.blogspot.com/2010/10/freedomof-speech-versus-contempt-of.html
JOURNALS
Indian Bar Review Supreme court cases Journal of Indian Law Institute Criminal Law Journal
STATUTES

CONTEMPT OF
COURT
ACT, 1971
SUPREME COURT RULES, 1966 ADVOCATES ACT, 1961
WEBSITES

www. legal serviceindia.com www.indlii.org.in www. legalindia.in
NEWSPAPERS
THE HINDUSTAN TIMES THE TIMES OF INDIA Clinical Course-IV Page 95 of 96

THE NEW INDIAN EXPRESS THE HINDU
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Supreme Court RulesContempt of court

4 5 7-10 10-16 17- 48 49-58 59-67 68-75 76-82 83 84-85

Supreme Court RulesContempt of court

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available on various websites.

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Genesis of the concept of Contempt of Court

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Origin and development of the concept of contempt of court in England

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Contempt by strangers out of court were tried by

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Development of the law of contempt of court in India

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I.L.R 10 Cal. 109

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CHAPTER-II What constitutes contempt of Court?

What is contempt of court?

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4th Ed. p. 390 (West's 1968)

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St. James Evening Post Case, (1742) 2 Atk 469.

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Object and policy of the Law of Contempt

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Classification of the Law of Contempt

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Corresponding procedure is contained in the

Criminal Procedure Code.

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Further the High Court was

made to include Judicial Commissioners court also.

Situations resulting in Court

Ibid. Section 3 of the 1926 Act. 46 Section 4 of the 1952 Act.

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Prejudging result of proceedings

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An Inquiry into Matters Covered by Court Proceedings

(1937) 37 SR (NSW) 242 at pages 249250 (1982) 152 CLR 25.

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Disclosure of documents to the court

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Use of documents obtained by a courts compulsory process

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Statements about a judge

. In the circumstances of that case, the

statement was accepted as being a statement about racism generally

(1972) 2 NSWLR 887

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Abuse of a judge in the court proceedings themselves will

Improper pressure on a witness or juror